tv Book Discussion on Dreams of Earth and Sky CSPAN May 31, 2015 8:00pm-9:06pm EDT
freedom act is. it's a product of bipartisan compromise. that's why it passed the house of representatives by a vote of 338-88. and, let's be blunt many of those who voted against it didn't do so because they support bulk collection. they did so because they want to see section 215 wither and die in its entirety. that's the political reality that we face today and we need to accept it rather than demand a continuation of a program that the appeals court has determined is illegal. mr. wyden: i thank my colleague for his statement and would just want to explore this a little bit further. i hope that those who are following this debate understand that my colleague from new mexico a real rising star here
in the senate, he and i would like the u.s.a. freedom act to go further and we both worked together on legislation that would make additional reforms. and certainly our colleagues on the intelligence committee and here in the senate can sphect -- expect to see us continuing to work together to advance these additional reforms over the coming months and years. and for now the two of us are saying we ought to support the u.s.a. freedom act and then move on move on to other critical areas. i particularly want to see closed what's called the back door search loophole, which my colleague from new mexico talked about. what this means colleagues, is that when you are engaged in a lawful search of someone who is a threat overseas pursuant to
section 702 of the foreign intelligence surveillance act very often americans law-abiding americans can get swept up in this search and have their e-mails looked at. this is a problem today and my view is it is likely to be a growing concern in the future because increasingly communications systems around the world are becoming globally integrated so the amount of e-mail that is viewed of americans is likely to grow. but we can't get that change here tonight. and so, as my colleague from new mexico has mentioned the u.s.a. freedom act would make several worthwhile reforms such as increasing transparency, reducing the government's reliance on secret law.
but from my perspective the centerpiece of it is ending the bulk collection of americans' information under the patriot act. i have been trying to close this particular loophole for close to a decade now. now some of our colleagues have said that the bulk collection has never been abused. no one's rights have been violated. my own view is -- i'm going to ask what my colleague thinks -- is vacuuming up all of this information, particularly when data bases get violated all the time. we've seen historically instances where there's been improper conduct by the government. i believe that dragnet surveillance violates the rights of millions of our people every day. vacuuming up the private phone records of millions of americans who have no connection to wrongdoing is simply a violation of their rights.
and vacuuming up americans' e-mail records which i pointed out before my colleague came to the floor, which he and senator our former colleague senator udall and i battled that sure is a violation of the rights of americans as well. and, colleagues, that wouldn't have been pointed out at all wouldn't have been pointed out at all unless senator udall and i, with the help of our friend from new mexico, hadn't been pushing back on it. finally one day the government said we'll get rid of it because it wasn't effective. they got rid of it because they saw they were going to get hard questions, the kinds of questions my friend from new mexico has been asking. now, with respect to the legality of this program i know my colleague and i actually filed a legal brief along with our former colleague mark udall when the court of appeals for the second circuit was examining in that program. and in our brief, it was our
view that we were able to debunk many of the claims that have been made about the effect iveness of the program. and i think it would be helpful if my colleague from new mexico laid out some of that analysis here tonight. i would ask the senator from from new mexico to begin and i would encourage him to start by addressing the claim that the bulk collection of americans' phone records is essential for stopping terrorist attacks. my question to my colleague is: is there any evidence, any real, concrete evidence that supports that claim? mr. heinrich: i want to thank my friend from oregon and begin by saying that despite what you may have heard by talking heads on the sunday shows and on the cable news networks, that the answer is, no, there is simply not evidence to support those
claims. and when this mass surveillance was first revealed to the public two years ago the executive branch initially responded to questions like this by claiming that various post-9/11 authorities had resulted in the thwarting of approximately -- quote -- "54 terrorist events in the u.s. homeland and abroad." unquote. now, a number of us, including my friend from oregon, my former colleague from colorado, senator udall, began to pull on that thread to really parse down and see just what the executive was talking about. and first of those 54 terrorist events it turned out that only 13 were actually focused in the united states. but more importantly those numbers conflated multiple different programs, including authorities under section 215
and different authorities under section 702. in june -- actually on june 19 of 2013, my colleague from oregon and senator udall pointed out that -- quote -- "it appears that the bulk phone records collection program under section 215 of the u.s.a. patriot act played little or no role in most of these disruptions saying that these programs have disrupted -- quote -- "dozens of potential terrorist plots is misleading if the bulk of the program is providing little or no unique value. of the original 54 instances that the executive branch pointed to, every one of them crumbled under scrutiny. none of them actually justified the continued existence of the bulk collection program. i'm going to take a moment with
the indulgence of our colleagues and read what was written by judge leone of the district court for the district
of columbia when he ruled in the claimant vs. obama case. this is a little bit long, but i think it's important that this be part of the official record of this debate. judge leone writes, "the government does not cite a single instance in which analysis of the n.s.a.'s bulk metadata collection actually stopped an imminent attack or otherwise aided the government in achieving any objective that was time-sensitive in nature. in fact, none of the three recent episodes cited by the government that supposedly illustrate the role that telephoning metadata analysis can play in preventing terrorist attacks involve any apparent
urgency." he writes that in the first example the f.b.i. learned of a terrorist plot that was -- quote -- "still in its early stages" and investigated that plot before turning to the metadata to ensure that all potential connections were identified. assistant director holly does not say that the metadata revealed any new information much less time-sensitive information, that had not already come to light in the investigation up to that point. the judge continues, in the second example it appears that the metadata analysis was used only after the terrorist was arrested to establish his foreign ties and to put them in context with
his u.s.-based planning efforts. and in the third the metadata analysis -- quote -- "revealed a previously unknown number for a coconspirator and corroborated this connection to the target of
the investigation as well as to other u.s.-based extremists." again, writes judge leone, there is no indication that these revelations were immediately useful or that they prevented an impending attack. assistant director holly even concedes that bulk metadata analysis only -- quote -- "sometimes provides information earlier than the f.b.i.'s other investigative methods and
techniques." finally, judge leone writes that given the limited record before me, at this point in the litigation most notably the utter lack of evidence that a terrorist attack has ever been prevented because of searching the n.s.a. data base and that it was faster than other investigative tactics, i have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases
involving imminent threats of terrorism." that is
where the judge leaves off. and i would turn back to the senator from oregon to address the three cases that we discussed in more detail in our amicus brief to the second circuit. mr. wyden: i thank my colleague. the first of these examples -- and they really are the kind of overblown examples about the effectiveness of bulk collection, is the case of an individual named najubullah zazi. he was a known terrorist suspect and a number of people suggested that bulk phone records collection was somehow essential to stopping him because a query of the phone records data base for numbers linked to mr. zazi returned a previously unknown number belonging to another terrorism suspect. however, since the government had already identified zazi as a
terrorism suspect prior to querying the bulk phone records data base, it had all the evidence it needed to obtain the phone records of zazi and his associates using an individualized section 215 order or other legal authorities. in the second case, some have pointed to mr. mullalan, a san diego man convicted of sending $8,500 to support shabaab in somalia. the intelligence community has indicated that information from the bulk phone records data base -- quote -- "established a connection between a phone number known to be used by an extremist overseas and an unknown san diego-based number that l belonged to mr. mullalan. yet there are ample existing authorities under which the united states can conduct surveillance on a phone number known to be used by an extremist overseas and other phone numbers in contact with that phone
number. the argument that mr. mullalan's case is an example of unique value of bulk phone records collection is just not accurate. and my view is this is yet another case that offers a misleading exaggeration with respect to the effectiveness of bulk phone record collection. finally, several supporters of the bulk metadata program have claimed that -- and i quote -- "if we had the bulk phone records program in place at the time of the september 11, 2001, attacks we would have been able to identify the phone number of one of the hijackers khalid al midar. just as in these other cases the records indicate mr. midar's phone number could also have been obtained by the government using a variety of alternate means. before september 11, the government was surveilling a safe house in yemen but failed
to realize that mr. midar who was in contact with the safe house was actually inside the united states. the government could have used any number of authorities to determine whether anyone in our country was in contact with the safe house that it was already targeting. it didn't need a record of every american's phone calls to establish that simple connection. mr. heinrich: i'd like to expound on that point a little bit, senator wyden. about the many other ways that the government can legitimately acquire the phone records of terrorism suspects, because i think it's a very important point to understand the tools that already exist that have been very effective and have proven themselves over time. there are actually a number of legal authorities that can get the same information without the government collecting billions of call records.
billions of call records that in large part belong to innocent americans. for example the stored communications act permits the government to obtain precisely the same call records that are now required through bulk collection under section 215 when they are -- quote -- "relevant and material to an ongoing criminal investigation." additionally, national security letters, which i would point out do not require a court order can also be used by the government to obtain call records for intelligence purposes. further, the government can also acquire telephone -- telephony met metadata on a realtime basis from orders from regular orders for the installation of pen registers for traip and trace devices. and finally individualized
orders for phone records as opposed to orders authorizing broad bulk collection, can also be obtained under section 215. i think those of us early in this debate thought that that was what was going to occur under the patriot act in the first place. but that is what the u.s.a. freedom act seeks to require while prohibiting the bulk collection of millions of personal records. it even includes emergency authorization authority for the government to get records prior to getting court approval subject to later court approval in an emergency. the government can use many of these authorities without any more evidence than what it currently requires to use the bulk phone records database with less impact, i would point out on the privacy interests of millions of innocent americans. so i think at this point the senator from oregon and i have laid out our case as to why this
dragnet bulk surveillance program fails to make our country measurably safer it should end. and i'm pleased to say that a number of people have finally come around to our way of thinking on this. mr. wyden: i thank my colleague and i think that i'd like to wrap up with just a couple of points and then give the last word to my friend from new mexico on this subject. he's absolutely right that some of "the" most authoritative leaders in our country experts on terror have reached the same judgment that we have. i made mention of the president's review group on intelligence and communications, you know, technologies. and i really would encourage colleagues who are following this debate and citizens across the country that report's available on-line available in our office. page 104 of that report is very,
very explicit. it says that the information that would otherwise be obtained from collecting all of these phone records millions and millions of phone records on law-abiding americans people like mike morrell former acting director of the c.i.a., and richard clark who served in two administrations, they said it could have been obtained through conventional processes. this is a program that is not making us safer and it is not my judgment that ought to be the last word, it should be that of people like i have just quoted. i'll go on to say the privacy and civil liberties oversight board report on the phone records program said pretty much same thing. i quote here "section 215 has shown minimal value in safeguarding the nation from terrorism. based on the information provided to the board including
classified briefings and documentation." we have not identified a single instance involving a threat to our country in which the program made a concrete difference in the outcome of a counterterror inquiry. and i think i'll close by way of saying -- and i touched on this before my friend from new mexico arrived -- i would like to do a lot more than i believe is likely to happen here quickly in the united states senate. i do want to see us finally throw in the dust bin of history this bulk phone records collection program because it doesn't make us safer and it compromises our liberty. but as i indicated to my friend from new mexico, i'd also like to close this backdoor search loophole in the fisa act which is going to be a bigger problem
in the days ahead given the evolution of communications systems and how they've become globally integrated. and i'll close by saying one of the most important issues, "the" most important issues we are going to have to tackle in the days ahead is going to deal with encryption and encryption, of course is the encoding of data and messages so that they cannot be easily read. the reason that this will be an enormously important issue -- and my colleague and i have talked about this -- is because of the n.s.a. overreach the collection of all of these phone records on law-abiding people. a lot of our most innovative, cutting-edge companies have found their customers raising real questions about whether their products can be used safely. and a lot of the contracts and
purchasers who buy their products around the world are saying, you know, maybe we shouldn't trust them. maybe we should try to start taking control over their servers and have local storage requirements and that sort of thing. so what our companies did because they saw the effect of the overreach by the n.s.a., they started to use encryption to protect the data and messages of the consumers who buy their products. now most recently the head of the f.b.i., mr. comey has said rather than to try to come back with a solution that protected both our privacy and our security, he said that he was interested in requiring companies to build weaknesses into their products. just think about that one requiring companies to build
weaknesses into their products so the government which in effect caused this problem with an overreach in effect rather than trying to find a solution that worked for both security and liberty said we'll just start talking about requiring companies to actually build weaknesses into their products. i and others have pointed out once you do that, hang on to your hat because when the good guys have the keys, that's one thing. but when companies are required to build weaknesses into their products, the bad guys are going to get the keys in a hurry too. and with all the cyber hacking and the risks we already have, we ought to be really really careful going where mr. comey our f.b.i. director, has proposed going. but that's not for tonight.
tonight is not an occasion where we'll be able on a bipartisan basis to close the backdoor search loophole or we'll be able to come up with a sensible policy with respect to encryption where we're requiring companies to build weaknesses into their products. we're not going to be able to do that tonight. about you tell we will have a chance here in the united states senate now to take steps that have been bipartisan, have been bipartisan both here in the senate here in the other body in the house of representatives to end the bulk phone record collection program because it doesn't make us safer and it threatens our liberty. and i always like to close by thinking about ben franklin, who said, "anybody who gives up their liberty to have security really doesn't deserve either." and i am so pleased to have a chance to serve with my colleague from new mexico on the intelligence committee whoing is going to be a thoughtful -- who
is going to be a thoughtful advocate on these policies for years toly co-. i thank him for his involvement tonight and would be happy to give him the last word of our colloquy at this time. i yield to my colleague. mr. heinrich: i want to thank my friend from oregon. and i think you could not have chosen a more appropriate way to end than to reference what ben franklin said so many years ago that great quote that those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety. and while many reforms still lie in front of us, i think as we move forward to approving the u.s.a. freedom act we move a lot closer to the balance that ben franklin articulated so well over 200 years ago. and i look forward to working